29 October 2018
The Court of Justice of the EU has held that, in judicial procedures based on the Environmental Impact Assessment (EIA) Directive, national courts must interpret procedural law consistently with the requirement that proceedings must not be prohibitively expensive. Besides confirming the importance that bringing environmental cases must be affordable, this case illustrates the gap between EU law on paper and realities in the national courts.
In 2004, Mr Volkmar Klohn, an Irish farmer, challenged the construction of an inspection unit for animals infected by Bovine Spongiform Encephalopathy (BSE). Mr Klohn eventually lost his case and was subsequently ordered to pay the costs of the public authority who had taken the decision, amounting to approximately 86.000Euros. Mr Klohn appealed this decision to the Supreme Court which finally referred a question to the CJEU as to the effect of the requirement in the EIA Directive that proceedings must not be “prohibitively expensive”.
Following its finding that the provision was applicable to the dispute, the central question for the CJEU was whether what is now Article 11(4) of the EIA Directive is sufficiently precise and unconditional to have direct effect. The CJEU answered in the negative. However, it held that the national court was still required to interpret the applicable national procedural law to the fullest extent possible in conformity with the Directive so that persons are not prevented from pursuing a claim because of the financial burden.
The Court thereby applied the rational of North East Pylon where it had already held that Article 9(4) of the Aarhus Convention was not directly effective but nonetheless national procedural law needed to be interpreted in conformity with it. The Court explicitly stated that its interpretation in Klohn necessarily followed from this earlier case because the criteria for direct effect of international agreements signed by the EU and direct effect of directives are the same. This has the perhaps curious effect that the inclusion of the reference to “prohibitively expensive” in the EIA Directive has no added legal value, as Article 9(4) of the Aarhus Convention applies in any event to all permit decisions preceded by an EIA (based on Article 9(2) of the Convention).
The judgement’s most significant effect may therefore not be its interpretation of the EIA Directive but rather its clear illustration of how serious the Court takes the indirect effect of the Aarhus Convention in the national courts. Whether or not a directive specifically incorporates the Aarhus provisions, national judges must consider whether a piece of EU law falls under the Convention and, if yes, apply all the Convention’s guarantees. Unfortunately, experience shows that reality on the ground looks different: National judges may not be aware of these intricacies of EU law and be hesitant to refer a question to the CJEU, as recently demonstrated by the Supreme Courts of Bulgaria and Poland. The absence of an Access to Justice directive, therefore, constitutes a great obstacle to the correct implementation of the Aarhus Convention in practice.
Klohn further illustrates the importance of timely access to remedies. The case arose 14 years ago when Europe felt the last effects of the BSE crisis and “The Facebook” was first launched. And, since the case will now go back to the Irish Supreme Court, Mr Klohn’s court journey is not over yet. This demonstrates the absurd delays created by satellite litigation on costs where clear, statutory cost rules are lacking – a problem which is not addressed by the CJEU’s case law. Moreover, Klohn illustrates the time needed to obtain a preliminary ruling from the CJEU. While this case did not concern the validity of an EU act and could therefore not have been brought directly before the CJEU, questions as to the validity of EU law often take as long to be resolved. With the Commission’s study on the shortcomings of the Aarhus Regulation in the making, it is therefore important to remember that preliminary references on validity of EU law cannot replace direct access to the CJEU.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.